contract law essay

A tort is a civil wrong

Based on the website, (http://www.investorwords.com/5004/tort.html ) a tort is a civil wrong other than a breach of contract. The civil wrong means that any wrong done by citizens or person who may be unintentional, which results to damages such as death, personal injury, property damages, nervous shock or any consequential loss. A person that suffers the damages may be able to use the tort law to get the compensation from the person that is liable for the injuries. Example of tort is when a person named Linda accidentally throws a pen and hit Diana’s face. Diana actually can sue Linda for personal injuries like bruises on the face if Diana can prove that Linda actually unintentionally throws pen at her. If Linda throws pen at her intentionally, then the law of tort cannot be used because this offense has been considered as a crime. The law of tort seeks to provide legal remedy for the victims of certain forms of harmful conduct. Tort duties are owed to a wide range of persons and are not dependant on the existence of a contractual relationship.

1.2) Basis of tortuous liability

The tort liability is essentially fault-based. This means that a claimant must proof that the defendant acted intentionally or negligently and was therefore blameworthy. This is called negligence. In the scenario, the claimant is Alex and the hotel management is the tort feaser or defendant. This means that the hotel management is sued for negligence. The claimant can prove that the hotel management is at fault because they are placing the flower pot negligently and cause Alex to trip over and get minor bruises and fractured his wrist.

There are also some situations where the tortuous liability is non-fault based. It means that the claimant does not need to proof the fault. One of it is vicarious liability where in certain situations, one person may be held liable for the torts of another. For example, an employer is liable for the torts of his employees committed during the employment and working hours. There is also a tort of strict liability. This tort is where the claimant can recover compensation for loss or damage without having to prove fault of defendant. For example, if one person parks at a double line without knowing it, the police still can summon him or her. The person is strictly liable for his or her action even the fault could not be proven.

1.3) Types of Tort

There are many types of tort such as negligence, defamation, nuisance , trespass, anima ’s liability, strict liability, vicarious liability, occupier’s liability, nervous shock and etc In this case, we will only concentrate on certain types of torts which are negligence, trespass, occupiers liability, vicarious liability and strict liability.

Negligence

The tort of negligence is concerned with certain kinds of careless conduct which cause damage or loss to others. It is a tort that depends on the existence of a breach of duty of care owed by one person to another person.

1) Case: Donoghue vs Stevenson

The modern law of negligence is started from the case of Donoghue vs Stevenson.: Mrs Donoghue did not expect that a ginger beer that the beer that she drank in Paisley, Scotland can contain a decomposed snail that made her ill. The House of Lord held that Mrs. Donoghue had a valid claim even though her friend bought the ginger beer with the majority rule which is 3: 2 that Lord Atkin argued that the law should recognise a unifying principle that we owe duty of care to our neighbours.

Duty of care

It is important to know in what circumstances one person will owe a duty of care to another. According to the lecture notes, a duty of care is actually a legal obligation imposed on an individual requiring that they adhere to a standard reasonable care while performing any acts that could foreseeably harm others.

Before 1932 there was no generalised duty of care in negligence. The tort did exist and was applied in particular situations where the courts had decided that a duty should be owed, For like road accidents, bailments or dangerous goods. In Donoghue v Stevenson, Lord Atkin attempted to lay down a general principle which would cover all the circumstances where the courts had already held that there could be liability for negligence. He said:"The rule that you are to love your neighbour becomes in law, you must not injure your neighbour". There is also a leading case in United Kingdom that forms the three elements of duty of care.

2) Case: Caparo Industries vs Dickman

Dickman are the auditor sof company accounts. Caparo, the investor bought the shares and then discovered that the accounts did not show the company had been making a loss. Caparo alleged that in Dickman has negligently preparing the accounts and duty of care been owed to Caparo.

The three stage approach to establishing a duty of care recommended in this case which considers the following questions:

Was the harm suffered reasonably foreseeable?

Was there a relationship of proximity between the parties?

Is it fair, just and reasonable to impose a duty of care?

An example of the application of this approach is provided by the following case:

3) Case: Smith vs Eric S. Bush:

The defendant surveyors’ valuation report prepared for a building society was shown with their knowledge to the claimant buyer. In reliance on this, Ms. Smith bought the property. The court held that the defendant owed a duty of care to the claimant since she could reasonably be expected to rely on the advice.

Scenario: A duty of care is owed by the hotel management to Alex. This is because it is reasonable for the management to take care of its guests. Mainly, in a hotel, the management shall be liable for the safety of its guests. This is because the guests are in the premises and use the hotel facilities. So, the hotel management should be responsible in ensuring the guest safety.

Breach of duty of care

After establishing the existence of a duty of care, the claimant must show that the duty has been broken. The test for deciding whether there has been a breach of duty is whether the defendant has failed to do what a reasonable person would have done .A reasonable person is an average person that does not foresee every risk. So, if no duty is owed then there is no negligence lawsuit.

When the courts decide if duty was owed, then they consider the objective or subjective standard. Objective standard considers the defendant's actions against a hypothetical reasonable person. With the subjective standard, the court considers whether the tortfeasor, the person who is allegedly negligent, believes her or his actions were reasonable. For example, if someone attempts to rob an elderly woman in a parking lot and she happens to have a gun and shoots her attacker, the objective standard would ask if a reasonable person would have acted the same way. In the subjective standard the courts would ask the elderly woman if she thought she was acting in a reasonable fashion.

4) Case: Bolton vs Stone:

The claimant was injured by a cricket ball hit from the cricket club grounds controlled by the defendant. The defendant does not foresee that the ball would cross over the boundary fence. The court held that the defendant was not liable as reasonable care had been taken to reduce the chances of occurrences, given that the height of the fence and the distance of wicket and the history of balls that are rarely escaping from the ground.

Scenario: The hotel management has a duty of care to its guest. So, by not taking care of the safety of the guests, it is considered breach of duty of care. This means that the hotel management has breach the duty of care to Alex by injuring Alex.

Professionals have different standards of care. They have higher standards if rather than an ordinary reasonable person would have. For example, a medical doctor is expected to give good advice on how to treat illness. Thus, the perspective is different from a medical doctor to just an average person. Not just professionals, there is also a special standard of care for the children. If the younger the children are, then the higher of duty of care that they wil get.

The hospital gave electro-convulsive therapy that broke Bolam’s bones. Some doctors would give relaxant drugs others would not. The court held that a doctor is not guilty of negligence is he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art. Thus, Bolam’s lost the case.

Damages

After establishment of a duty and a breach of that duty, in a negligence case the claimant must have a loss or injury to recover. The prerequisite is important if a defendant is unable to deny his negligence, but the claimant suffered no injury as a result. In such a case the defendant will not be found liable. Loss or injury can vary from case to case. It may be a physical injury, it may be property damages, or in some instances it may be the suffering of emotional distress. So, to recover the lost, it will be replaced with damages which also mean monetary relief.

Scenario: There is personal injury that is suffered by Alex. Alex had minor bruises and fractured his wrist bone. He also was admitted to the hospital for one week and was not able to go to school for one week. Due to his the pain and suffering, hotel management should be liable to pay the damages such as pay the medical bills

6) Case: Dollmant vs Hillman ( 1941)

The claimant was awarded damages for injuries caused by slipping on a piece of fat, which had been dropped on the pavement outside the defendant’s butcher’s shop.

Causation

In a claim for negligence, the claimant must establish not only that he was owed a duty of care, and that the defendant was in breach of that duty, but that the breach was the cause of the injury or loss he suffered. Thus, it is reasonable for the defendant should compensate the claimant for that loss or damage.

7) Case: Hughes vs Lord Advocate:

This is a famous English tort case decided by the House of Lords on causation. A young boy was playing with an oil lamp that had been left in the street. He accidentally dropped it into an open manhole causing an explosion; burning him badly. The court found that the chain of events causing the explosion was not reasonably foreseeable. Nevertheless, the type of injury suffered (burns) were of a type that would foreseeably be caused by the lamp. Consequently, the harm was found to be sufficiently proximate to make out the claim.

Scenario: The hotel management has caused the injuries that are suffered by Alex by negligently placing the flower port at the lobby. This proves that the defendant (hotel management) negligence has caused the claimant’s loss and damage (the injuries).

This entitles for the claimant to claim under the negligence because the situation completes all the elements of negligence.

2) Trespass

Based on the website, (http://en.wikipedia.org/wiki/Trespass), trespass is a legal concept, which refers to intrusion into another person's property. There are three types of trespass which are trespass to land, trespass to property and trespass to person. Trespass to person is like ‘someone that touches you unlawfully’. For example, in a public bus, someone purposely touches on one of your body parts. Thus, you can sue that person under trespassing. Next is trespass to property. Trespass to property mainly like keeping or possessing or entering a property that is not ours without getting the permission from owner. For example of this trespass is ‘leaning on somebody’s car. Lastly is trespass to land which means a common law tort that is committed when an individual or the object of an individual intentionally enters the land of another without a lawful excuse.

In the scenario, it uses the law of trespass to land. John was not invited to the birthday party. He only follows his brother Alex to the hotel. When someone is not invited to a premise, then the person is considered as a trespasser. But in this case, he is protected under the occupier’s liability act of 1984.

Occupier’s Liability

8) Case: Wheat vs Lacon

In Wheat v Lacon, an occupier means as the person in control of the premises at the time of the accident. The ‘occupier’ might be a local authority, a company, an individual or a partnership. There also may be more than one occupier at a time. In the case of Wheat vs Lacon, the licensee and brewery owner of a pub were both held to be the occupiers of a pub since , under the lease , the brewery was responsible for repairs and thus controlled the state of the premises.

There are two acts that is related to occupier which are Occupiers’ Liability Act 1957 and Occupiers’ Liability Act 1984. For Occupiers’ Liability Act 1957 covers the liability of an occupier to what the act refers as visitors. This Act defines the duty of care that the occupier has to people who enter his premises lawfully. But the occupier does not mean that he or she is liable to the visitors just because the accidents happen. The visitors must prove first that the occupier is failed to take reasonable precautions to prevent it. Then, the act can be applied to protect the visitors.

9) Case:In Dawson –v- Scottish Power Plc

The court found Scottish Power liable when an eleven year old boy had climbed over the fence surrounding an electricity sub-station, was electrocuted. The boy was found one third contributory negligent. The fence was six feet high, but soil had built up at the base of the fence, making it only four feet high. By the way, the fence was topped with spikes and had warning notices stating ‘Danger of death – Keep out’.

For the Occupiers’ Liability Act 1984, this act covers the people who do not have permission from the occupier to enter into the premises or in another words this act protects the trespasser.The 1984 Act offers less protection that the 1957 Act. A duty of care only arises where

 the occupier is, or should be, aware of the danger on his property, has some

 the occupier has reasonable grounds to believe that people may enter the premises without his permission

 the danger is one which it is reasonable to expect the occupier to protect against

The act will only apply if the occupiers breach the duty of care above. If the person is willing to accept the risks, then no duty is owed to him. The related to this statement is related to the case below:

10) Case: Tomlinson –v- Congleton

Where the claimant became injured when he dived into a pool at a country park and he ignored the warning signs and became seriously injured. When he entered the water, he became a trespasser. The defendants (relied on Scrutthon’s LJ opinion in The Carlgarth [1927] P93 11 “..... When you invite a person into your house to use the staircase, you do not invite him to slide down the banisters ....." Thus, the occupiers do not owe duty of care to the claimant.

Scenario : Even though Alex is a trespasser, but under the Occupiers’ Liability Act 1984, the hotel management is liable to Alex. This is because Alex was injured as a result of the condition of the premises. The flower pot at the hotel lobby is placed at the wrong area. Maybe the flower plot is placed where people could not see it while they are walking. Thus, this may cause injuries to the person who stumbles over the pot. This shows that the danger arise from the premise and not the act of the claimant. Thus, a duty of care is owed to Alex

1.4) The contrast between tortuous liability and contractual liability

Tortuous liability is actually means civil wrong which not arise out of contractual obligations. Unlike the obligations voluntarily accepted by the parties to a contract, a tort usually apply when the action is done unintentionally. For example on tortuous liability is when a person hits another person accidentally. Contractual liability is civil action where it is a liability that does not arise by way of negligence, but by assumption under contract or agreement. It is a promise that may be upheld in court. For example, when the person agrees to enter into a contract and both parties has made an agreement and if the other party does not show up to make the obligation, then the person is tend to be claim under the contractual liability.

When enters into a contract, usually there will be both contracting parties. The parties to a tort would be claimant & tortfeasor. The claimant is actually the one who claims for damages. Tortfeasor is the one who commit a wrongful act that injures another and for which the law provides a legal right to seek relief. It is also considered as the defendant in a civil tort action. The parties to contract would be plaintiff & defendant. The plaintiff is the party that brings suit into court a court of law prior to breach of contract while the defendant is the party that is being sued and will defense themselves in court.

The remedy for tortuous liability involves damages and injunction only. The main remedy against tortuous loss is to get the compensation in damages or money. For example in the scenario, the claimant’s medical bill can be paid due to the injuries that are caused by a tortuous act. If it is the case of continuing tort, the courts will grant an injunction which means to put a stop on the tort. For example, if A has been scratched by the neighbor’s cat for several times and the pay for the injuries could not satisfy A, then the court will make restraining order on the cat which may cause the cat to be taken somewhere else. For contractual liability, the remedies are ‘SPIDARR" which are specific performance, injunction, reimbursement and restitution. The specific performance is used to force or persuade another party. This is usually used in sale of land where the vendor refuses to convey title. The rescission can be obtained when the innocent party can apply to court for cancelling the contract. Restitution is an order by the court where the party may have to return the property that they have taken under the contract to another party.

Tortous liability involves an act or omission which is done unintentionally. Sometimes, it is not done purposely to get the benefits for themselves. Their actions may cause injuries to other people. For example, in the case of omission, the medical doctor fail to give medical attention to a boy that desperately need the doctor’s help. The doctor fail to do so because he was busy treating other patient. So, this shows that tort is an act which is done unintentionally by one party Contractual liability is an act done usually intentionally. When a person enters into contract, the person has to make obligations towards the contract. So, sometimes when the party could not fulfilled the contract terms, and then they are tending to run away from the contact. So, they purposely do the act to avoid from being sue from the other party

In tortuous liability, the claimant may be able to claim the pure economic loss where the loss not easily calculated. The pure economic loss refers to financial loss and damage suffered by a person which only can be seen in the balance of sheet than physical injury to the person or destruction of property. For example, loss of production suffered by an enterprise whose electricity supply is interrupted by a contractor excavating a public utility.In contractual liability, the party can only claim damages on liquidated or unliquidated damages. The liquidated damages are damages that can be calculated during the formation of contract and it is specified under the contract. For example, if you want to have your kitchen remodelling job finished in time for your big party, so you include a provision in the contract that says the contractor must pay you $100 per day for every day after the completion date that the job is not completed. Unliquidated damages are damages assessed by the court, to be paid to the victim of a breach of contract in respect for the other party’s losses caused by that breach.The unliquidated damages are damages that are sufficiently uncertain because they are not mathematically calculable.

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